Citation Nr: 0106396
Decision Date: 03/05/01 Archive Date: 03/08/01
DOCKET NO. 97-07 583 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for arthritis, claimed
as due to cold exposure.
2. Entitlement to service connection for compression
fracture of L-1.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Salari, Counsel
INTRODUCTION
The appellant had over 20 years of active duty service
between 1941 and 1961 and separated in August 1961. This
appeal comes before the Board of Veterans' Appeals (Board)
from a rating decision from the Department of Veterans
Affairs (VA) Regional Office (RO).
The Board notes that during a hearing held before the
undersigned in January 2001, the appellant withdrew the
appeal of the issue of whether new and material evidence had
been presented to reopen a claim for service connection for
osteoarthritis of the lumbar spine. This issue is therefore
not before the Board. 38 U.S.C.A. § 7105 (West 1991);
38 C.F.R. § 20.204 (2000).
REMAND
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law eliminates the concept of a well-grounded
claim, redefines the obligations of the Department of
Veterans Affairs (VA) with respect to the duty to assist, and
supersedes the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded. This change in the law is applicable to
all claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, 2096-2099 (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VA regional office (RO) has not yet considered whether
any additional notification or development action is required
under the Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Therefore, for these reasons, a remand is required.
Accordingly, this case is REMANDED for the following:
The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letters 00-87
(November 17, 2000), 00-92 (December 13,
2000), and 01-02 (January 9, 2001), as
well as any pertinent formal or informal
guidance that is subsequently provided by
VA, including, among other things, final
regulations and General Counsel precedent
opinions. Any binding and pertinent court
decisions that are subsequently issued
also should be considered. If the benefit
sought on appeal remains denied, the
appellant and the appellant's
representative, if any, should be provided
with a supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
MARY GALLAGHER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).